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COMMISSION & SURVEY COMMISSION

(Sec. 75 r/w. Or. 26, rule 9 CPC)

…. S.S. Upadhyay
Legal Advisor to Governor
UP, Lucknow
Mobile : 9453048988
E-mail : ssupadhyay28@gmail.com

1. Duty of court while issuing commission(Rule 68 GR Civil)---(A) Rule 68 of

GR Civil provides that when issuing a commission for making a local investigation u/o
26, Rule 9 CPC the court shall define the points on which the Commissioner has to
report. No point which can conveniently and ought to be substantiated by the parties
by evidence at the trial shall be referred to the Commissioner.
(B) Court to define points for the report of Commissioner--- Rule 68 of GR
Civil provides that when issuing a commission for making a local investigation u/o 26,
Rule 9 CPC the court shall define the points on which the Commissioner has to report.
No point which can conveniently and ought to be substantiated by the parties by
evidence at the trial shall be referred to the Commissioner.
(C) Issuing commission is discretionary & not right of party---Issuing
Commission u/o 26 rule 9 CPC for local investigation is in the discretion of the court.
No party to the suit can claim as a right to get a commission issued. But the discretion
has to be exercised judiciously. See---Dr.K.C. Tandon Vs. IXADJ Kanpur-Nagar,
1998(33) ALR 267 (All)
(D) Matters to be proved by parties not to be referred to commissioner--- Rule
68 of GR Civil provides that when issuing a commission for making a local
investigation u/o 26, Rule 9 CPC the court shall define the points on which the
Commissioner has to report. No point which can conveniently and ought to be
substantiated by the parties by evidence at the trial shall be referred to the
Commissioner.
(E) Stage of issuing commission---C.L.No. 22/VIII-h-13 dated 18.3.1949 provides
that immediately after the issues have been struck the presiding officer should
consider, may be on an application by a party, if the preparation of a site plan or
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enquiry after local inspection at the spot is necessary for the proper decision of the
case. The commission should, as far as possible, be issued on that very day with clear
and detailed directions to be recorded in the Judge’s notes, as to what the
Commissioner is required to show in the plan and on what points he is required to
make a specific report.
(F) Use of Commissioner’s report--- Trial court can appoint a Commissioner u/o.
26, rule 9 CPC but ultimately finding have to be recorded by the trial court itself.
Report of Commissioner can only be an aid u/o. 26, rule 10 CPC to the trial court in
arriving at its findings. See--- Praga Tools Corporation Ltd. vs. Mahboobunnissa
Begum, (2001) 6 SCC 238

2. Admissibility of Commissioner’s report as evidence--- Report of

Commissioner is admissible as evidence u/o. 26, rule 10(2) CPC even as substantive
evidence without examination of Commissioner. See--- Harbhajan Singh vs. Smt.
Shakuntala Devi Sharma, AIR 1976 Delhi 175 (Delhi)

3. Commissioner’s report to be substantive evidence--- Commissioner’s report

is admissible as substantive evidence u/o. 26, rule 10(2) CPC even without
examination of Commissioner. See--- Harbhajan Singh vs. Smt. Shakuntala Devi
Sharma, AIR 1976 Delhi 175 (Delhi)

4. Examination of Commissioner as witness--- According to Or. 26, rule 10(2)

CPC the Commissioner’s report is part of evidence in the case. Commissioner need not
be examined as a witness for proving his report. See---
1. State of U.P. vs. Smt. Ram Sri, AIR 1976 All 121 (D.B.)
2. Haji Kutubuddin vs. Allah Banda, AIR 1973 All 235

5. Value of Commissioner’s report after his examination as witness---

(A)Even if Commissioner was examined as a witness, the court has discretion to take
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or not to take into consideration the report of the commissioner in respect of a disputed
fact after considering the objections against it. See--- Haji Kutubuddin vs. Allah
Banda, AIR 1973 All 235
(B) Lawyer executing commission acts like court --- Lawyer executing commission
acts like court. Allegations made by biased litigants not to be taken notice of unless
supported by affidavit or evidence. See---1963 RD 119 (All)
(C) Objections against commissioner report not to be taken notice of unless
supported by affidavit or evidence--- Lawyer executing commission acts like court.
Allegations made by biased litigants not to be taken notice of unless supported by
affidavit or evidence. See---1963 RD 119 (All)
6. Necessity of disposal of Commissioner’s report--- Authority is bound to
consider and decide objections against Commissioners’ report before relying on his
report u/o. 26, rule 10(2) CPC. See--- Harbhajan Singh vs. Smt. Shakuntala Devi
Sharma, AIR 1976 Delhi 175 (Delhi)

7. Survey commission & identity of property---(A)where a suit for declaration

and possession of rights in the disputed land was decreed and the decree was upheld
without properly identifying the disputed property by survey of commissioner, it has
been held that when serious dispute of identifying the land was involved, upholding
the decree without properly identifying the disputed land by survey of commissioner
was not proper. See--- Shreepat vs. Rajendra Prasad, 2000 (40) ALR 534 (SC)
(B) Survey of adjoining plots not necessary when property identifiable by
boundaries---Where in a suit for mandatory injunction seeking demolition of
construction on suit property, the commissioner had identified the suit property with
reference to its boundaries, it has been held by the Supreme Court that the
commissioner’s report u/o 26 rule 9 & 10 CPC cannot be discarded on the ground that
survey of adjoining plots was necessary. Even if there was any discrepancy normally
the boundaries should prevail and survey would not be necessary. See---Subhaga Vs.
Shobha, 2006 (6) ALJ 235(SC)
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(C)Options of court in the event of conflict between boundaries & area : Where in
a suit for mandatory injunction seeking demolition of construction on suit property, the
commissioner had identified the suit property with reference to its boundaries, it has
been held by the Supreme Court that the commissioner’s report u/o 26 rule 9 & 10
CPC cannot be discarded on the ground that survey of adjoining plots was necessary.
Even if there was any discrepancy normally the boundaries should prevail and survey
would not be necessary. See---Subhaga Vs. Shobha, 2006(6) ALJ 235(SC)
(D) Survey when not necessary? : Where in a suit for mandatory injunction seeking
demolition of construction on suit property, the commissioner had identified the suit
property with reference to its boundaries, it has been held by the Supreme Court that
the commissioner’s report u/o 26 rule 9 & 10 CPC cannot be discarded on the ground
that survey of adjoining plots was necessary. Even if there was any discrepancy
normally the boundaries should prevail and survey would not be necessary. See---
Subhaga Vs. Shobha, 2006(6)ALJ 235(SC)
(E) Qualified Engineer can be engaged for survey work(C.L.No.58/2007 dated
13.12.2007) :The C.L. No.58/2007 Admin (D): dated 13.12.2007 provides that in more
complicated cases involving survey work the same should be performed by Qualified
Engineers who can be engaged by the party concerned if adequate fees is provided for
the same.
(F) Relevant rules & C.L.s for survey commissions : Certain relevant rules &
Circular Letters regarding survey commissions are as under....
(i) Rule 66, GR Civil
(ii) C.L. No. 52 dated 5.5.1972
(iii)C.L.No. 58/2007 dated 13.12.2007
8. Report of the Commissioner to be decided by the trial court alone : If the
dispute is with regard to the acceptability of the Commissioner’s report, it would be
open to the parties to substantiate their respective contentions before the trial court
regarding tenability or untenability of commissioner’s report and its conclusions. See--
- Rajinder & Co. vs. Union of India, (2000) 6 SCC 506
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9. Commissioner’s report when to be rejected : when the commissioner’s report

has serious discrepancies in it, court should reject such report. A seriously defective
report of Commissioner cannot be accepted as evidence u/o. 26, rule 10 CPC. See---
Gopal Behera vs. Loknath Sahu, AIR 1991 Orissa 6

10. Survey Commissioner’s report not conclusive even when confirmed : On

being confirmed, the report of a Survey Commissioner can be read as evidence in the
case, but that does not mean that any opinions expressed therein by the Survey
Commissioner are conclusive and binding on the court. The report has to be examined
in the light of the other evidence and the other evidence judged in the light of the
report and the Court has to arrive at its findings on the basis of the entire evidence on
the record in the light of the pleadings of the parties on the issues that arise for
decision in the case. The Survey Commissioner’s report ‘good, bad or indifferent’ is
not to be taken as binding on the Court issuing the commission once it is confined and
admitted in evidence. See--- Chandrapal vs. Roop Rama, 1979 All. L.J. 55 (All)
11.Recording of Evidence by Commissioner & procedure therefor : Complete
procedure for evidence on commission u/o 26 rule 4 & 4-A CPC has been elaborated
by the supreme court. See---Salem Advocates Bar Association Vs. Union of India,
(2005) 6 SCC 344 (Three-judge Bench)
12.Certified copy of commissioners report admissible in evidence : Commissioners
report once admitted in evidence in a suit, a certified copy of it would be admissible in
evidence u/s 90-A of the Evidence Act. See---1980 ACJ 72(All)
13.Revision not to lie against order refusing issue of commission---Revision u/s
115CPC against rejection of an application for issue of commission is not
maintainable. See---Ram Ishwar Vs. Laxmi Narain, 2007 (66)ALR 195 (All.)

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